Introduction
This article is one of a set about wills. While some of the information pages explain various pieces of legislation which are relevant to making a will, others explain a particular aspect of will writing that you might like to consider.
This article explains the type of assets you can and can’t leave in your will.
Property you an leave in your will
If you live in the United Kingdom, you can dispose by will of all your moveable possessions and all real property which is situated in Australia.
If you own property outside Australia, the question as to whether your Australian will is an appropriate document to dispose of the property is a matter for the law of the country in which the property is located. (However, your executors will have to take out a grant of probate in the country in which the real estate is situated, even within Australia)
If you own property in Australia as a joint tenant, then your half share passes automatically on your death to your co-owner. You have no choice in the matter. However, note that the value of your share will be included in the valuation of your estate for the purposes of inheritance tax, unless one of the exemptions applies.
Intellectual property. This expression describes most intangible assets such as domain names, patents, copyrights, rights to sue for damages (except to sue for defamation) and right under many contracts.
Self administered pension plans (SIPPS) and other pension schemes. Great care is needed here because your pensions could well be your most valuable asset. The care is needed by you in planning and later by your executors to make sure the trustees of any pension or pension policy are aware of any claim your executors might make. What they can claim depends entirely on the rules of the particular scheme.
Property you cannot leave in your will
Insurance policies in trust
When you take out an insurance policy you may stipulate that the policy is taken out on trust for some other person or people. You can also make a written declaration at any time in respect of an existing policy that the policy shall be held on trust for others. When a policy is “on trust” for some other person, it means that other person or group of people have the benefit of it. The advantage of a policy or other financial instrument being in trust is that on your death (or the maturity of the policy) the value of the policy does not form part of your estate and consequently it is:
- payable immediately to the trustees without waiting for a grant of probate;
- not subject to inheritance tax (because it is not part of your estate)
Other property you do not own
There are several other situations where a testator may believe he owns property which is not his to give. The most important of these are:
- a power of appointment - upon which we do not elaborate her;
- possessions subject to a hire purchase agreement;
- property left it to you only for your lifetime;
- some rights in connection with land;
- some companies state in their articles of association (the regulations which govern the running of the company) that you cannot transfer the shares in the company (sometimes except to specified members of your family), without first offering them to the existing shareholders in the company. If you own shares in a small or family company you should check the position first with the company secretary or at Companies House.
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